The trial of 37 mostly Gaddafi-era officials accused of serious crimes during Libya’s 2011 uprising raises serious due process concerns, Human Rights Watch said today. The trial, which began on March 24, 2014, resumed on April 14 in a specially designated courtroom in Al-Hadba Corrections Facility in Tripoli.

Concerns about the trial include the defendants’ limited access to lawyers and key documents on the evidence against them. Libya should ensure that the defendants receive a fair trial, Human Rights Watch said, including by granting them full access to a lawyer, adequate time to prepare their defense, and the ability to challenge evidence presented against them.

“This case has been riddled with procedural flaws right from the beginning, which have made it grossly unfair to the defendants,” said Richard Dicker, international justice director at Human Rights Watch. “Putting Gaddafi-era officials on trial without fair-trial guarantees shouldn’t leave anyone satisfied that justice is being done.”

The defendants in the trial include Saif al-Islam Gaddafi, a son of Muammar Gaddafi, the longtime Libyan leader who was overthrown in 2011, as well as well as Abdullah Sanussi, the Gaddafi-era intelligence chief. Saif al-Islam Gaddafi and Sanussi are also implicated in cases at the International Criminal Court (ICC) on charges of crimes against humanity for their alleged role in trying to suppress the uprising.

According to al-Siddiq al-Sur, the head of investigations at the office of the Libyan prosecutor general, 26 defendants were being held at Al-Hadba Corrections Facility in Tripoli, six were detained in prisons in Misrata, and one – Gaddafi – in Zintan, while four were not detained.

Libya has failed to turn Saif al-Islam Gaddafi over to the ICC, despite an outstanding obligation to surrender him to the court. United Nations Security Council Resolution 1970, which referred the situation in Libya to the ICC, requires the Libyan authorities to cooperate fully with the court, a binding requirement under the UN Charter, even though Libya is not a party to the treaty that established the court. Libya should promptly surrender Gaddafi to the ICC, Human Rights Watch said.

On January 23, Human Rights Watch interviewed Gaddafi in an office at a base in the town of Zintan. The base is under the control of a guard force that is detaining Gaddafi at an undisclosed location and says it operates under Defense Ministry authority. Human Rights Watch also visited Sanussi and former prime ministers Al-Baghdadi al-Mahmoudi and Abuzaid Dorda, who are also defendants in the case, in Al-Hadba on January 23. Libyan judicial police are, at least formally, in charge of administering the prison.

Based on the visits, Human Rights Watch concluded that Libya had failed to grant basic due process rights to Gaddafi and the other detained former officials. At the time of the visit, Gaddafi and Sanussi told Human Rights Watch that they did not have a lawyer, while Dorda and al-Mahmoudi said they had been denied adequate access to their legal counsel. All four said that officials would not let them have a lawyer present during their interrogations, would not reveal their interrogators’ identities, and had denied the defendants the right to remain silent and the opportunity to review the evidence against them.

The UN Working Group on Arbitrary Detention held in November 2013 that Gaddafi’s detention has been arbitrary, and that the gravity of the due process violations in his case made it impossible to guarantee him a fair trial in Libya. The UN panel concluded that the adequate remedy would be to discontinue the domestic proceedings against Gaddafi.

Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which Libya ratified in 1970, affirms the most basic fair trial rights. It requires governments to provide a fair hearing before a legally constituted, competent, independent, and impartial judicial body. Among other things, this right includes: adequate opportunity to prepare a case, present arguments and evidence, and to challenge or respond to opposing arguments or evidence; the right to consult and be represented by a legal representative; and the right to a trial without undue delay and to an appeal to a higher judicial body.

The defendants are facing numerous charges for crimes allegedly committed during the period that began on February 15, 2011, the start of the uprising against Gaddafi, though not all of the charges apply to all the defendants. Some of the charges carry a possible death sentence.

The ICCPR limits the circumstances in which a state can impose the death penalty. The United Nations Human Rights Committee, the body that interprets the ICCPR, has said that, “in cases of trials leading to the imposition of the death penalty, scrupulous respect of the guarantees of fair trial is particularly important.”

Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and inhumane punishment. Libya should join the many countries already committed to the UN General Assembly’s December 18, 2007 resolution calling for a moratorium on executions, part of a global trend toward abolishing the death penalty, Human Rights Watch said.

“In cases involving the death penalty, adherence to fair trial standards is more important than ever,” Dicker said. “Instead of giving in to public pressure, the government in Tripoli should join the international trend and do away with this inhumane practice.”

Al-Sur told Human Rights Watch during a meeting on April 9, 2014, that a pre-trial judge could decide at a later stage to merge a separate case against Saadi Gaddafi, another son of Muammar Gaddafi, and Abdullah Mansour, head of internal security under Gaddafi, but only if it did not cause any undue delay to the proceeding.

Saadi Gaddafi, who was extradited from Niger to Libya on March 6, and Mansour who was extradited from Niger in February, are currently under investigation and their cases have yet to be presented to a pre-trial chamber. Al-Sur said that Saadi Gaddafi did not yet have a lawyer to represent him.

Saif al-Islam Gaddafi was not in the courtroom when the trial resumed in Tripoli, and instead remained in Zintan. Gaddafi also did not appear at any of the pretrial sessions, as the head of the guard force detaining him refused to comply with the general prosecutor’s summons to transfer him to Tripoli. The guard force chief told Human Rights Watch he feared for the safety of his own men and Gaddafi due to the volatile security situation on the main road between Tripoli and Zintan. For the trial, authorities set up a so-called “closed circuit” link up for Gaddafi, though it is unclear whether Gaddafi consented to this arrangement.

On March 24, parliament passed a law amending articles 241 and 243 of the Libyan Code for Criminal Procedure, allowing defendants, expert witnesses and others to testify via “modern communication methods” without having to be in the courtroom, al-Sur told Human Rights Watch. The law stipulates that these measures should be used only in urgent cases and if officials fear for the defendant’s safety. Al-Sur said this measure would apply to Saif al-Islam Gaddafi and at least two of the defendants held in Misrata, citing the same security concerns. He said these defendants and their lawyers would have the same rights as if the defendants were in the courtroom. Such an arrangement casts doubt on these defendants’ right to communicate and consult with their lawyers without delay and in full confidentiality, Human Rights Watch said.

The fair trial principles articulated by the African Commission on Human and Peoples’ Rights hold that an accused has the right to appear in person before a judicial body. The African Commission is the continent’s principal human rights body, charged with implementing the African Charter on Human and Peoples’ Rights, to which Libya is a party.

Human Rights Watch has reported on the challenges facing the Libyan judicial system, particularly the government’s inability to gain control over all detainees in militia-run facilities, including Saif al-Islam Gaddafi. Other challenges include the abuse of detainees in custody, officials’ failure to provide them access to lawyers, and the lack of judicial reviews of their cases. These issues weigh heavily on Libya’s ability to ensure that the fundamental rights of defendants, including Gaddafi-era officials, are respected, Human Rights Watch said.

Despite some positive steps, the Libyan authorities have also struggled to establish a functioning police force that can enforce and maintain law and order. The resulting fragile security environment also raises serious concerns about whether officials can guarantee the safety of judicial personnel and others, including witnesses and defendants, during a trial. The weakness of the judicial police, the force responsible for security during trial proceedings and for operating detention facilities, is compounded by a lack of means, capacity and training.

Throughout 2013, there were reports of threats and physical attacks on lawyers, prosecutors and judges in parts of Libya. Human Rights Watch has documented such attacks by militias and unidentified people in Benghazi, Derna, Zawiyah, and Misrata. At least four judges and prosecutors were among the dozens of victims of seemingly politically motivated assassinations in 2013 by unidentified assailants. Unidentified assailants also attacked courthouses in various regions. On February 8, unidentified people assassinated Libya’s former general prosecutor, Abdelaziz al-Hasadi, in the eastern city of Derna.

Under the United Nations Basic Principles on the Role of Lawyers, states are required to guarantee that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment, or improper interference, and that their security is not threatened as a result of discharging their functions.

Generally, trials of serious crimes can be extremely sensitive and can create risks to the safety and security of witnesses and victims who may testify to deeply traumatic events. The risk of retribution is even greater for judicial personnel involved in cases of serious crimes, given the gravity and sensitive nature of the underlying crimes, Human Rights Watch said.

Under international law, trials in absentia are permitted only in exceptional circumstances and where the defendant has explicitly waived the right to be present. Though Libyan law permits trials in absentia in some circumstances, Libya’s delegate to the ICC, Ahmed Gehani, has said in pleadings before judges in The Hague that such trials are not allowed if the defendant’s location on Libyan territory is known.

“In order for Libya to move forward, there needs to be accountability for past crimes,” Dicker said. “But for Libyans to achieve justice, not revenge, authorities should grant defendants their full due process rights and ensure respect for the rule of law.”